Lawyer
Sought to Show Client’s Acquiescence to Police Reflected Fear, Not
Consciousness Of Guilt; Panel Says the Point Was Made Without Need to Refer to
Unrelated Cases

By a MetNews
Staff Writer

The Court of
Appeal for this district has rejected the contention of a man who was convicted
of residential burglary that the judge wrongfully barred his lawyer from
talking to jurors about three nationally publicized cases of police fatally
shooting persons who, like the defendant, were African-American males.

The
lawyer, in closing arguments, was seeking to dissuade jurors from inferring
guilt from the actions of her client, Leroy Roberts, after a patrol car of the
Alhambra Police Department pulled up behind the gray sedan in which he was
sitting, which was parked by the scene of a residential burglary that police
had just received word was in progress. Roberts opened the passenger door,
tossed a screwdriver out, alighted from the vehicle and obeyed the command of
Sergeant Tai Seki that he get on the ground.

These
acts might be portrayed by the prosecutor, the defense lawyer told jurors, as
“signs of consciousness of guilt,” and that Roberts “gave himself up because he
was guilty.”

She
continued:

“Certainly,
there’s another explanation for that.”

The
lawyer declared that this is “the age of”—and mentioned, by name, three African
Americans who were unarmed when shot and killed by police.

Judge Moses’s
Ruling

Los
Angeles Superior Court Judge Jared Moses interrupted, sustaining his own
objection, on relevancy grounds, and told jurors to disregard what they had
heard.

The
lawyer continued with her argument, explaining that because Roberts “was an
African American male,” he “was fearful of being shot, or... he was fearful of
being harmed,” adding:

“And,
certainly, from my questions with Sergeant Seki there, the screwdriver could
possibly be used as a weapon. So part of the thinking is do I want to be caught
with something that could be perceived—not as a screwdriver used to screw
in…screws [but] as a weapon, you toss that thing out.”

The
persons the lawyer identified as having been killed by police were Tamir Rice,
Walter Scott, and Michael Brown.

Rice,
12, was shot in a city park in Cleveland on Nov. 22, 2014, while pointing a gun
(later determined to have been a toy), and died the following day. The shooting
of Scott, 50, occurred on April 4, 2015, in North Charleston, South Carolina,
and the officer pled guilty in federal court to civil rights violations,
resulting in state murder charges being dropped. It was in Ferguson, Missouri,
that Brown, 18, was fired upon on Aug. 9, 2014, while walking toward a police
officer, following an altercation.

Dunning Explains
Affirmance

Affirmance
of Roberts’ conviction came Friday, in an opinion that was not certified for
publication. Orange Superior Court Judge Kim Dunning, sitting on assignment to
Div. Five, authored it.

She
wrote:

“Defendant
contends the trial court abused its discretion when it prevented his attorney
from discussing by name three highly-publicized cases involving police
shootings of young African-American males. According to defendant, the three
police shootings were matters of common knowledge and historical fact that his
counsel should have been able to discuss and present as an alternative
explanation for defendant’s decision to toss the screwdriver from the car, exit
the vehicle, and comply with Sergeant Seki’s commands.

“The
challenge to the trial court’s ruling overlooks the fact that defense counsel
did argue defendant’s decision to toss the screwdriver, exit the vehicle, and
submit to police authority had nothing to do with consciousness of guilt and
everything to do with a reasonable fear the officer might shoot him or consider
him to be armed or aggressive because he was a young African-American male.
Defendant has failed to demonstrate that his attorney’s inability to cite
unrelated cases by name in any way diminished counsel’s ability to proffer an
explanation for his conduct.”

Dunning
went on to say:

“Moreover,
the trial court’s ruling based on relevance was correct on the merits.
Defendant presented no evidence at trial from which the jury could have
reasonably inferred he was aware of the facts or circumstances of the three
shootings, much less that his conduct in throwing the screwdriver and then
submitting to police authority was a direct response to those shootings.”